People v. Nooner

PEEK, P. J.

The state has moved to dismiss defendant’s appeal from a judgment entered on a plea of guilty to an information charging him with a violation of' Penal Code section 4532 (escape), upon the grounds that it was sham, frivolous, and lacking in appellate objective.

Following a denial by this court of defendant’s request for counsel, defendant filed an opening brief in his own behalf. Many of the matters which he raises are wholly outside the record and are before this court only by virtue of appearing in documents filed by him in the trial court and his brief on appeal. At the time of oral argument on said motion defendant was represented by counsel of his own choice who stated, in reply to questions from the court, that defendant had “sufficiently explained his points in the brief,’’ that the appeal was in order, and that it should be disposed of “on the merits.’’ Therefore, rather than disposing of the case on respondent’s motion, as might well be done, the court has chosen to dispose of the issues raised by defendant on their merits.

From the documents mentioned, it appears that defendant was arrested in Nevada on February 17, 1961, and on February 26 was extradited from that state and lodged in the San Joaquin County jail on the charge of robbery, and that while being held on that charge, he and another inmate escaped.

Apparently the first complaint filed by the district attorney on the escape charge was dismissed under Penal Code section

[725]

1382 because of the failure of the district attorney to file an information within the statutory period. Subsequently, a second complaint was filed charging defendant with a like offense. On the same date, April 26, an information was filed by the district attorney and the defendant, who was then represented by counsel, waived reading of the information, waived time, and personally entered a plea of guilty to the charge of escape. The charge of robbery was dismissed and at the request of defendant’s counsel, the matter was referred to the probation officer and the cause continued to May 10. On that date the report was received and probation was denied. Defendant was adjudged guilty of the crime charged and sentenced for the term provided by law.